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2016 (2) TMI 73 - HC - Service TaxRefund - unjust enrichment - filing of writ petition against the order of adjudicating authority - Held that - The Court is of the considered view that instead of there being parallel proceedings on the question of entitlement of the Appellant to refund the better course would be to permit the Appellant to raise the aforesaid three issues apart from other issues it may want to raise in the appeal to be filed by it against the order dated 30th November 2015. In any event on the second issue raised by the Appellant the Appellate Authority will have to examine the documents and materials placed on record by the Appellant and come to a conclusion on merits. - Considering that the Appellants application for refund has been pending for quite some time and with the Appellant having already approached this Court once earlier the Court directs that the appeal to be filed by the Appellant be disposed of by the Commissioner Appeals within a period of three months from the date of registration of such appeal.
Issues:
1. Exemption application - CM APPL No. 2159 of 2016 2. Delay in filing appeal - CM APPL No. 2158 of 2016 3. Appeal against CESTAT order - SERTA 3 of 2016 & CM No. 2157 of 2016 Exemption Application (CM APPL No. 2159 of 2016): The High Court allowed the exemption application, subject to all just exceptions, and disposed of the application. Delay in Filing Appeal (CM APPL No. 2158 of 2016): The delay in filing the appeal was condoned based on the reasons stated in the application, and the court disposed of the delay application. Appeal Against CESTAT Order (SERTA 3 of 2016 & CM No. 2157 of 2016): The appeal challenged the order of the Customs Excise and Service Tax Appellate Tribunal (CESTAT) dated 6th April 2015, which remitted the refund application to the adjudicating authority for a fresh decision. Subsequently, the Assistant Commissioner rejected the refund application, directing the amount to be transferred to the Consumer Welfare Fund under Section 11B of the Central Excise Act, 1944. The Appellant, a Public Sector Undertaking (PSU), contended that it was outside the purview of Section 11B of the Act as a State entity. Additionally, the Appellant argued that despite providing evidence that the service tax was paid by mistake and not passed on, the refund claim was wrongly rejected. The issue of entitlement to interest on the refund amount was also raised. The High Court decided that instead of separate proceedings, the Appellant should raise all three issues, including any others, in the appeal against the Assistant Commissioner's order. The Appellate Authority was tasked with examining the documents and materials to reach a conclusion on the merit of the refund claim. The Court permitted the Appellant to raise the mentioned issues in the appeal and directed the Commissioner Appeals to dispose of the appeal within three months from registration, considering the pending status of the refund application and prior court involvement. Ultimately, the appeal and related applications were disposed of in accordance with the directions provided by the High Court.
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